On November 22, 1993, Madison Teachers, Inc., filed a petition with the
Wisconsin Employment Relations Commission pursuant to Sec. 227.41, Stats., seeking
a declaratory ruling that an interest arbitration award issued pursuant to Sec.
111.70(4)(cm), Stats., should be modified or remanded to the arbitrator under ERB
32.16 and 32.17. The parties thereafter stipulated to the record and filed written
argument in support of and in opposition to the petition, the last of which was
received July 25, 1994.

Having considered the matter and being fully advised of the premises, the
Commission makes and issues the following

FINDINGS OF FACT

1. At all times material herein, Madison Teachers, Inc., herein MTI, was a labor
organization functioning as the collective bargaining representative for certain
educational assistants employed by the Madison Metropolitan School District. MTI
has its principal offices at 821 Williamson Street, Madison, Wisconsin, 53703.

2. The Madison Metropolitan School District, herein the District, is a municipal
employer having its principal offices at 545 West Dayton Street, Madison, Wisconsin,
53703.

3. On October 29, 1992, MTI filed a petition with the Wisconsin Employment
Relations Commission for final and binding interest arbitration regarding the
educational assistants pursuant to Sec. 111.70(4)(cm)6., Stats. Pursuant to that
petition, MTI and the District ultimately proceeded to interest arbitration before
Arbitrator Frank P. Zeidler.

4. During a July 27, 1993 hearing before Arbitrator Zeidler, the District and
MTI
represented the following argument and testimony:

SUSAN HAWLEY, DISTRICT LABOR CONTRACT MANAGER

. . .

Again, you'll find from the testimony, that our position here
is
consistent
with our position in other units, and that -- so we are internally consistent, and
also that there have been a series of very public debates as the Arbitrator well
knows, in relation to budget constraints from the legislature. Those budget
constraints impacts on all units, and all of our budgetary issues. There have been
a series of programs that have been cut out of the budget, and the district
attempted to balance program cuts while keeping wages and benefits at a reasonable
level. Those constraints by the legislature are continuing, and there is a dollar,
$190 dollar per cap per student constraints on our budget, that it is just in the
process of being enacted. And that of course has had an impact on all of our
negotiations this year, and as Mr. Matthews indicated correctly, we have proceeded
to arbitration on all units. We have commenced food service negotiations and we are
not sure exactly where that negotiations will be at the present time, but every
other unit is in the process of either having had a hearing, or for interest
arbitration, or proceeding to a hearing.

We do believe, though, that this reflects not only what is
happening in this
district but what is happening state wide, and also reflects constraints on our
budget. (Tr. 29-30)

. . .

CHRIS HANSON, DISTRICT COMPTROLLER

. . .

A

Yes, I am primarily responsible for
coordinating the development of the
District's annual budget.

Q

Could you state whether or not the
Governor or the Legislature or the State
of Wisconsin in any event has placed limitations on this year's budget?

A

The state legislature has passed a plan
which limits school district
expenditures and it is before the governor now for signature.

Q

And does that have a per pupil cap in it?

A

Yes, it does. It has a per pupil revenue
cap, it limits the amount of
money a district can raise through a combination of their general state aide and
their local property taxes on a per pupil basis and establish a cap which they
therefore cannot exceed beyond that level.

Q

And has the district taken measures to at
this point in time, to cut the
things from the budget in order to be prepared for this kind of a cap situation?

A

Yes, the tentative budget, which has been
approved by the Board of
Education and committee as of this time, took into consideration and enacted a
number of expenditure reductions from what had been previously considered existing
levels of expenditure for the school district.

Q

What are some of the examples of some of
the kinds of cuts that the Board
has made?

A

Well, the custodial staffing levels from
1992-93 have been reduced, the
level of expenditures for the district extra curricular athletic program has been
reduced, the staffing ratios for pupil teacher ratios that were in existence in
1992-93 have been increased, which reflects a greater ratio, more pupils per teacher
as a cost reduction mechanism. Those are three.

Q

Summer school affected?

A

Thank you, the elementary summer school
program, was effectively eliminated
upon completion of the segment which concluded in early July this year and there is
no provision for continuation of that program next summer.

Q

Okay, and the finalization of the total
impact of the budget has not yet
been determined exactly for 93-94, is that right?

A

That's correct. Board of Education
adopted a budget tentatively in
committee and chose to recess at that time, until further information was then made
available by the state. That information now is starting to come forth ... (Tr.
208-209)

. . .

SUSAN HAWLEY, DISTRICT LABOR CONTRACT MANAGER

. . .

The next exhibit, Exhibit 55 was a state budget, another article
indicating the
state budget and the situation with the legislature, and this indicates that just
recently, as of the last few weeks, the legislature has placed a cap as Mr. Hanson
indicated, has placed a cap on the district spending of $190.00 per pupil, and has
also placed limits on teacher pay raises, as also indicated in this article. In
Exhibit 56, the article indicates again, the recent legislative action, again the
spending limit per pupil, and the constraints that the District will be under in
terms of that particular legislation that is being I think at this time finally
drafted and it is going on to be the board -- to the governor. (Tr. 278)

. . .

DOUG KELLOR, MTI ASSISTANT TO THE EXECUTIVE DIRECTOR

. . .

Q

And in your understanding of Senate Bill
44 which became the budget bill
enacted by the State of Wisconsin, is it your understanding that there is a
mechanism for the District to spend what it wants relative to the educational
program in the district?

A

Yes, there is.

Q

And they are not limited by what mandates
the legislature or the governor
may plan on them?

A

No, the mechanism they can utilize would
be a referendum among the
electorate of the school district. (Tr. 288)

. . .

5. In its initial brief to Arbitrator Zeidler, the District argued in part as
follows:

. . .

The Board also offered 4% and 3% respectively for 1992-93
and the 1993-94
school years for the Clerical/Technical Unit. The arbitration decision in that unit
was recently received by the District and the District prevailed in that
arbitration. A copy of the arbitration decision, Decision No. 27611, is attached
to this brief. The Decision by Arbitrator Tyson indicates that the District's offer
of 4% for the 1992-93 school year and 3% for the 1993-94 school years was accepted
by the arbitrator and is, therefore, an internal comparable which relates directly
to this arbitration.

. . .

IX. THE PUBLIC INTEREST SUPPORTS THE
DISTRICT POSITION.

District's Exhibits #50 through #56 indicate the struggle that
the
Madison
Metropolitan School District has had with the budget for the 1993-94 school year.

District Exhibit #50 is a document called
"The Citizens' Budget" and was
prepared to help citizens understand the budget process for the 1993-94 school year.
(Tr. p. 275) The first page of Exhibit #50 includes a letter from the
Superintendent of Schools which points out that there were public forums and
hearings which indicated overwhelming support to continue the programs of the
District but that there also were concerns over rising property taxes. There were
also concerns at the time over the Governor's proposal to impose freezes on the
property tax rate. (Tr. pp. 275-276) This document goes on to point out that the
District made numerous cuts to the budget and that there was an attempt by the
District to spread the cuts across the board to minimize their impact. (Tr. p. 276;
District Exhibit #50) From page six through page twelve of District Exhibit #50
many of the programs totally valued at approximately $4 million that were cut are
listed and explained. At page 16 District Exhibit #50 indicates that the budget did
include significant amounts of money for salary and benefit increases - $6.4 million
of the $9.2 million. (District Exhibit #50, p. 16; Tr. p. 276) Therefore, salary
and benefit increases were included in the budget even though there were a number
of other cuts to programs to try to arrive at a budget which fell within the
constraints of the potential legislative constraints. (Tr. p. 277)

District Exhibit #51 is a set of Minutes of the Board of
Education of June 14,
1993 in which the Board changed the number of the cuts but ended up with a proposed
budget that was still holding the line on property taxes. (Tr. p. 277) Exhibit #52
is the press article indicating the results of the June 14, 1993 meeting and
discusses the budget cuts that were still contained in the budget proposal. (See
also District Exhibit #54)

District Exhibit #55 and #56 indicates the summary of the
legislation that was
finally established which will limit the District's spending to $190 per pupil over
the District's last budget. It also indicates that it has placed limits on teacher
pay raises of 2.1% for total salary and 3.8% for a total package. (See District
Exhibits #55 and #56)

. . .

In its initial brief to Arbitrator Zeidler, MTI argued in part as follows:

. . .

B.Financial Ability to Pay

Madison is an affluent community. The District's "inability
to
pay" argument
is based upon its, and only its, understanding of the legislation as of the date of
the hearing in the instant matter. The Employer makes reference to a recently
legislated $190 per student cap as a "constraint on (the MMSD's) budget" (Tr.29).
Yet, the Employer failed to mention that the District could exceed the per student
"cap" by holding a referendum among the electorate (Tr.288). Given the citizenry's
overwhelming support in the District's most recent budget process, there is no
indication that they would be less supportive of said referendum.

. . .

As previously mentioned, while the recent award involving
the
clerical/technical bargaining unit (SEE-MTI) included a 1993-94 increase of only 3%,
the Arbitrator's decision was based on the fact that the SEE_MTI bargaining unit was
highly paid when compared to the external comparables, and in effect is the "wage
leader." The Educational Assistants, however, are not "wage leaders", so the same
rationale does not apply. Those involved in the instant matter are behind their
peers who are employed by the comparable districts.

. . .

6. On October 20, 1993, Arbitrator Zeidler issued his Award wherein he selected
the final offer of the District. The Award is attached to this decision as Appendix
A. In his Award, at pp. 23-25, Zeidler stated in part as follows:

XVI. ABILITY OF THE UNIT OF
GOVERNMENT TO MEET THE COSTS AND THE INTEREST
AND WELFARE OF THE PUBLIC.

. . .

Discussion and Opinion. The evidence is that the
District would have the
ability to pay the costs of the MTI offer, though with new budget restraints by the
legislature, it might have to cut services if the MTI offer prevails. As to the
interest and welfare of the public, the evidence is that although citizens of the
District at a hearing supported the level of services of the District, they did not
speak to whether they would support this level if it cost more. At the same time
there was in operation other forces to curtail education expenditures in the form
of a legislative cap on the increase per pupil for the total budget and on an
increase for teachers and administrators.

In the presence of this effort to control and compress school
budgets, it must
be judged that the District offer, which is substantially higher in total
compensation per employee than the Consumer Price Index changes, is more reasonable
by responding to the changed conditions in legislation.

XVII. CHANGES DURING THE PENDENCY
OF THE PROCEEDINGS. The Award of
Arbitrator Tyson to the District in the contract between the Clerical/Technical
employees in the District and the District must be considered as a factor weighing
for the District offer because of the similarity of percentage increases for
compensation offered.

. . .

XIX. SUMMARY OF FINDINGS AND
CONCLUSIONS. The following is a summary of the
findings and conclusion of the arbitrator:

1. There is no question here as to the lawful authority of
the District
to meet the cost of either offer.

2. All other matters have been stipulated to between the
parties.

3. The arbitrator considers districts adjacent to Madison
with unions to
be the primary comparables. These districts are Middleton-Cross Plains, Sun
Prairie, Verona, Monona Grove and McFarland. This is because they are part of the
same market from which Education Assistants are likely to be drawn. The 10 largest
districts offered by the MTI and adjacent districts offered by the District which
are not organized but grouped with organized adjacent districts also have a
secondary value.

4. The offer of the District when compared to the
conditions in the
primary comparables for wages is reasonable and the more comparable.

5. The 1990 data offered by the District on comparisons
with wages paid
to other governmental units in the Madison area for work similar to Educational
Assistants the arbitrator regards as insufficient for making a conclusive judgment
as to the comparability of either offer.

6. As to comparisons of percentage increases offered in the
same unit of
government for 1992-1993 wages, the MTI offer is the more comparable.

7. As for the offers on holidays, the District offer which
increases the
number of holidays each year by one is comparable and reasonable.

8. As for comparison of employment in the private sector,
the District
offer is competitive for persons seeking part-time work, but the higher turnover
indicates that the positions are not comparable for persons seeking full-time
employment.

9. The arbitrator considers the inclusion of an unsigned
Memorandum of
Agreement between the parties as not appropriately included, even though it
constitutes a commitment by the District of pay for training.

10. As for the changes in the cost of living, the District offer
for total
compensation is closer to the changes than the MTI offer.

11. The District has the ability to meet the costs of either
offer.

12. As to the interest and welfare of the public, the District
offer, in
light of the legislative effort to control educational costs and compress percentage
increases of professional employees, is the more reasonable.

13. As to changes during the pendency of the proceedings,
the decision of
Arbitrator Tyson in an arbitration matter involving Clerical/Technical employees of
the District is a factor weighing in favor of the District offer.

14. Though the District witnesses gave detailed testimony as
to their
complex duties, the arbitrator for lack of evidence was unable to make valid
comparisons with whether these duties were superior in detail to those of comparable
districts.

In light of the foregoing analysis, the factors of the wage and
holiday
offers, the cost of living changes, and the interest and welfare of the public
specially weigh in favor of the District offer. Hence the following Award is made:

XX. AWARD. The offer of the
Madison
Metropolitan School District in the
Educational Assistants' Collective Bargaining Agreement should be included in the
1992-1993 and 1993-1994 Agreement between the District and Madison Teachers, Inc.

Based upon the above and foregoing Findings of Fact, the Commission makes and
issues the following

CONCLUSION OF LAW

The Award issued by Arbitrator Frank P. Zeidler on October 20, 1993 in the
above matter was lawfully made and does not require modification under the
provisions of Secs. 111.70(4)(cm)6. and 7., Stats., and ERB 32.16 and 32.17.

Based upon the above and foregoing Findings of Fact and Conclusion of Law, the
Commission makes and issues the following

Because the Award issued by Arbitrator Frank P. Zeidler on October 20, 1993
was lawfully made and does not require modification, there is no basis under Sec.
111.70(4)(cm)6. and 7., Stats., and ERB 32.16 or 32.17 for the Wisconsin Employment
Relations Commission to modify same or remand the matter to Arbitrator Zeidler.

Given under our hands and seal at the City of

Madison, Wisconsin this 9th day of December, 1994.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

By Herman Torosian /s/
Herman Torosian, Commissioner

William K. Strycker /s/

William K. Strycker, Commissioner

Chairman A. Henry Hempe did not participate.

MADISON METROPOLITAN SCHOOL DISTRICT

MEMORANDUM ACCOMPANYING FINDINGS OF
FACT,

CONCLUSION OF LAW AND DECLARATORY
RULING

POSITIONS OF THE PARTIES

MTI

MTI initially argues that the Commission should modify the standard it has
previously applied when reviewing interest arbitration awards. Contrary to the
Commission holding in School District of Wausaukee, Dec. No. 17576 (WERC,
1/80)
aff'd Ct. App. III (No.81-1869, 1/83 unpublished) and Nekoosa School
District, Dec.
No. 25876 (WERC, 2/89), MTI argues that the test enunciated in Scherrer Const. Co.
v. Burlington Mem. Hospital, 64 Wis.2nd 720 (1974)and adopted by the Commission
is
not the appropriate standard to apply to interest arbitration awards. MTI conyends
that the Scherrer standard is not applicable because it does not fit the needs of
an interest arbitration review. MTI argues that in interest arbitration, an
arbitrator is making a choice between the final offers of the parties. Unlike
grievance or rights arbitration, which has a purpose of ensuring that the parties
receive the benefit of their earlier bargain, MTI asserts that interest arbitration
is intended to create that initial bargain. Thus, MTI argues that in interest
arbitration, the standard of review applicable when arbitrators are interpreting
contracts need not be applicable to circumstances in which the arbitrator is
creating the contract.

MTI contends that the Zeidler Award was not lawfully made because it was
premised in part upon the unlawful Tyson Award and upon Arbitrator Zeidler's view
of Act 16, a matter as to which the parties did not have the opportunity to make
argument. MTI asserts that the Zeidler Award should be overturned because he
disregarded the law he was obligated to apply (Sec. 111.70(4)(cm)7., Stats.) and
disregarded strong public policy in Act 16 which limited the Act's economic
restrictions to professional employes, not employes included in the MTI educational
assistant unit. MTI alleges that Zeidler made the problem worse by following
Tyson's leadership when determining that the Tyson Award in the clerical/technical
unit established an internal comparable.

Given Zeidler's error, MTI asserts that it is not possible to say how Zeidler
would have decided the case had he not improperly considered Act 16 and Arbitrator
Tyson's Award. MTI argues that the inclusion of Act 16 and Arbitrator Tyson's Award
in the arbitral balance was sufficient in and of itself to tip the scales in favor
of an award incorporating the District's final offer. Accordingly, MTI contends
that removing consideration of Act 16 and Arbitrator Tyson's Award from the equation
would clearly tip the balance in favor of an award incorporating MTI's final offer.
Thus, MTI asserts that this is the appropriate remedy for the Commission to award.
In the alternative, MTI contends that the Commission should remand the case to
Arbitrator Zeidler for further consideration.

In its reply brief, MTI contests the District's assertion that the impact of
Act 16 was litigated by the parties before Zeidler. MTI contends that Act 16 had
not reached its final form by the July 27, 1993 hearing date and thus that it is
"untenable" for the parties to have been presumed by Arbitrator Zeidler to have
known the intricacies of the Act. MTI alleges there is nothing in the exhibits of
either side that purports to explain the impact of Act 16 on their respective
positions and notes that the Arbitrator's Award is devoid of any references to the
actualities of Act 16 as it applies to educational assistants. Nonetheless, MTI
argues that the Arbitrator erroneously assigned to educational assistants the burden
of salary control that the legislature has laid upon professional employes.

MTI asserts that if the Commission affirms Arbitrator Zeidler's Award, there
will be

. . . a floodgate to disastrous award by renegade arbitrators. (The
prospect
of Arbitrator Zeidler being considered a 'renegade' is fraught with imagined
consequences; yet, if so long-standing an arbitrator as he can boot-strap onto
Arbitrator Tyson's award, what might other arbitrators do when faced with similar
challenges?)

In conclusion, MTI acknowledges that Arbitrator Zeidler did not issue his Award
based solely on either Tyson's Award or Zeidler's reliance upon recently enacted
statutes. However, MTI contends that the issue is whether his reliance in either
instance so tainted his Award as to make it reversible. In the absence of the
opportunity to provide evidence about the Act and its impact and to argue from that
evidence, and in the absence of any explanation from the Arbitrator as to the impact
of Act 16 on his decision-making process, MTI asserts the Commission should grant
the relief it seeks.

The District

The District argues that Arbitrator Zeidler's Award was lawfully made within
the meaning of ERB 32.16(1)(d). The District contends that Zeidler properly
considered the Tyson Award as to the matter of internal comparability and that
Tyson, in turn, had properly considered the impact of state budget constraints upon
the proceeding before him. Therefore, the District argues that Zeidler
appropriately applied the statutory criteria and gave weight to the Tyson Award.
In this regard, the District notes that MTI itself referenced the Tyson Award in its
brief to Arbitrator Zeidler.

The District further asserts it was appropriate for Zeidler himself to consider
the impact of Act 16 upon the proceeding before him. The District notes that the
parties placed evidence and argument before the Arbitrator as to the budget
constraints imposed by the legislature. Thus, the District argues it was clearly
appropriate for Zeidler to consider Act 16 when rendering his Award. The District
further notes that the Tyson Award and Act 16 played only a partial role in the
Zeidler Award and that the Award in question was reached after the Arbitrator had
properly considered all of the criteria which the statute establishes.

Given the foregoing, the District asserts the Commission should conclude the
Zeidler Award was lawfully made and that no modification is appropriate.

DISCUSSION

A declaratory ruling petition filed pursuant to Sec. 227.41, Stats., is the
vehicle by which a labor organization can acquire Commission review of interest
arbitration awards under the standards established by ERB 32.16 and ERB 32.17.
Nekoosa School District, Dec. No. 25876 (WERC, 2/89); School District
of Wausaukee,
Dec. No. 17576 (WERC, 1/80), aff'd CtApp III (No. 81-1869, 1/83
unplublished).

ERB 32.16(1) provides in pertinent part:

. . .

In determining whether an interest arbitration award was
lawfully made, the
commission shall find that said award was not lawfully made under the following
circumstances:

(a) Where the interest arbitration award was procured by
corruption, fraud or
undue means;

(b) Where there was evident partiality on the part of the
neutral arbitrator
or corruption on the part of an arbitrator;

(c) Where the arbitrator was guilty of misconduct in refusing
to conduct an
arbitration hearing upon request or refusing to postpone the hearing upon sufficient
cause shown, or in refusing to hear supporting arguments or evidence pertinent and
material to the controversy; or of any other misbehavior by which the rights of any
party have been prejudiced;

(d) Where the arbitrator exceeded his or her powers, or so
imperfectly
executed them that a mutual, final and definite interest arbitration award was not
made.

. . .

ERB 32.17 provides:

If, in a proceeding for enforcement, it appears that an interest
arbitration
award is lawfully made, but that the award requires modification or correcting, the
commission shall issue an order modifying or correcting the award. An interest
arbitration award may be modified or corrected where:

(1) A court enters an order, which is not subject to further
appeal, reversing
a commission ruling that a particular proposal contained in said award is a
mandatory subject of bargaining;

(2) Where there was an evident material miscalculation of
figures or an
evident material mistake in the description of any person, thing, or property
referred to in said award;

(3) Where the arbitrator has awarded upon a matter not
submitted, unless it
is a matter not affecting the merits of the award upon the matters submitted;

(4) Where the award is imperfect in matter of form not
affecting the merits
of the controversy.

ERB 32.16 and 32.17 draw heavily upon Secs. 788.10 and 788.11, Stats., which
establish the standards under which the courts will vacate or modify interest
arbitration awards issued pursuant to Sec. 111.77, Stats., and grievance arbitration
awards issued pursuant to Chapter 788 and/or Secs. 111.10, 111.70(4)(cm)4, and
111.86, Stats. Thus, it is appropriate for us to seek guidance from the holdings
of our courts when they have interpreted Secs. 788.10 and 788.11, Stats. Therefore,
we cited Scherrer Construction Co. v. Burlington Memorial Hospital, 64 Wis.2d
720
(1974) in Nekoosa and Wausaukee for the proposition that:

... to vacate an arbitration award, the court must find not merely
an error in
judgment, but perverse misconstruction or positive misconduct ... plainly
established, manifest disregard of the law, or that the award itself violates public
policy, is illegal or that the penal laws of the state will be violated.

It should also be noted that when interpreting Sec. 788.10(1)(d) Stats., the
functional equivalent of ERB 32.16(1)(d), the Court in Oshkosh v. Union Local
796-A,
99 Wis.2d 95, 102-103 (1980) held:

In reviewing the validity of this arbitration award, several
basic
principles
guide our discussion. The law of Wisconsin favors agreements to resolve municipal
labor disputes by final and binding arbitration. An arbitrator's award is
presumptively valid, and it will be disturbed only where invalidity is shown by
clear and convincing evidence. Milwaukee Bd. School Directors v. Milwaukee
Teachers' Ed. Asso., 93 Wis.2d 415, 422, 287 N.W.2d 131 (1979).

Therefore, the court's function in reviewing the arbitration
award is
supervisory in nature. The goal of this review is to insure that the parties
receive what they bargained for.

. . .

The parties bargain for the judgement of the arbitrator-correct
or
incorrect-whether that judgment is one of fact or law.

. . .

Our role in reviewing an interest arbitration award under ERB 32.16 and ERB
32.17 parallels that of the court under Chapter 788. The law in Wisconsin clearly
favors the resolution of labor disputes involving municipal employers and employes
through final and binding interest arbitration. Pursuant to the directive of Sec.
111.70(4)(cm) 8.d. Stats., we established administrative rules, subject to
legislative approval, which parallel the provisions of Chapter 788. Thus, we think
it clear that our role, like that of the court under Chapter 788, is a supervisory
one and that awards are "presumptively valid" so long as the parties receive what
they are entitled to under Secs. 111.70(4)(cm)6. and 7., Stats.

Given the foregoing, we continue to be persuaded that our role in these matters
is a supervisory one and we thus decline MTI's invitation to apply a different
standard of review to the Zeidler Award. While MTI is obviously correct that an
interest arbitrator is creating a contract rather than interpreting an existing
agreement, we think the applicable law and existing judicial interpretation thereof
establish a clear and common policy favoring final and binding resolution of both
grievance and interest arbitration disputes with only supervisory review. In
grievance arbitration, that supervisory role seeks to ensure that the parties
receive what they bargained for. In interest arbitration, that supervisory role
seeks to ensure that the parties receive what they are entitled to under Secs.
111.70(4)(cm)6. and 7., Stats.

MTI argues the Zeidler Award was unlawfully made because it was premised in
part upon the unlawful Tyson Award and Act 16. We disagree.

As is apparent from Findings of Fact 4 and 5, before Zeidler the parties
vigorously litigated the impact on their respective offers of the fiscal constraint
legislation enacted by the legislature. As reflected in Finding of Fact 5, the
Tyson Award was also presented to Zeidler for his consideration. In such
circumstances, it was entirely appropriate for Zeidler to comment in his Award on
the impact of legislative fiscal constraints and Tyson's Award. To the extent MTI's
theory herein hinges on the allegedly unlawful nature of the Tyson Award, we reject
same in light of our decision in Madison Metropolitan School District, Dec. No.
28252 (WERC, 12/94) in which we found the Tyson Award to be lawful.

Given under our hands and seal at the City of

Madison, Wisconsin this 9th day of December, 1994.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

By Herman Torosian /s/
Herman Torosian, Commissioner

William K. Strycker /s/

William K. Strycker, Commissioner

Chairman A. Henry Hempe did not participate.

1. Pursuant to Sec. 227.48(2), Stats., the
Commission hereby notifies the parties
that a petition for rehearing may be filed with the Commission by following the
procedures set forth in Sec. 227.49 and that a petition for judicial review
naming the Commission as Respondent, may be filed by following the procedures
set forth in Sec. 227.53, Stats.

227.49 Petitions for rehearing in contested cases. (1) A petition for
rehearing shall not be prerequisite for appeal or review. Any person aggrieved
by a final order may, within 20 days after service of the order, file a written
petition for rehearing which shall specify in detail the grounds for the relief
sought and supporting authorities. An agency may order a rehearing on its own
motion within 20 days after service of a final order. This subsection does not
apply to s. 17.025(3)(e). No agency is required to conduct more than one
rehearing based on a petition for rehearing filed under this subsection in any
contested case.

227.53 Parties and proceedings for review. (1) Except as otherwise
specifically provided by law, any person aggrieved by a decision specified in
s. 227.52 shall be entitled to judicial review thereof as provided in this
chapter.

(a) Proceedings for review shall be instituted by serving a petition
therefore personally or by certified mail upon the agency or one of its
officials, and filing the petition in the office of the clerk of the circuit
court for the county where the judicial review proceedings are to be held.
Unless a rehearing is requested under s. 227.49, petitions for review under
this paragraph shall be served and filed within 30 days after the service of
the decision of the agency upon all parties under s. 227.48. If a rehearing
is requested under s. 227.49, any party desiring judicial review shall serve
and file a petition for review within 30 days after service of the order
finally disposing of the application for rehearing, or within 30 days after the
final disposition by operation of law of any such application for rehearing.
The 30-day period for serving and filing a petition under this paragraph
commences on the day after personal service or mailing of the decision by the
agency. If the petitioner is a resident, the proceedings shall be held in the
circuit court for the county where the petitioner resides, except that if the
petitioner is an agency, the proceedings shall be in the circuit court for the
county where the respondent resides and except as provided in ss. 77.59(6)(b),
182.70(6) and 182.71(5)(g). The proceedings shall be in the circuit court for
Dane county if the petitioner is a nonresident. If all parties stipulate and
the court to which the parties desire to transfer the proceedings agrees, the
proceedings may be held in the county designated by the parties. If 2 or more
petitions for review of the same decision are filed in different counties, the
circuit judge for the county in which a petition for review of the decision was
first filed shall determine the venue for judicial review of the decision, and
shall order transfer or consolidation where appropriate.

(b) The petition shall state the nature of the petitioner's interest, the
facts showing that petitioner is a person aggrieved by the decision, and the
grounds specified in s. 227.57 upon which petitioner contends that the decision
should be reversed or modified.

. . .

(c) Copies of the petition shall be served, personally or by certified
mail, or, when service is timely admitted in writing, by first class mail, not
later than 30 days after the institution of the proceeding, upon all parties
who appeared before the agency in the proceeding in which the order sought to
be reviewed was made.

Note: For purposes of the above-noted statutory time-limits, the date of Commission
service of this decision is the date it is placed in the mail (in this case the date
appearing immediately above the signatures); the date of filing of a rehearing
petition is the date of actual receipt by the Commission; and the service date of
a judicial review petition is the date of actual receipt by the Court and placement
in the mail to the Commission.